RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1200721
BRANCH OF SERVICE:  Army	BOARD DATE:  20130516
SEPARATION DATE:  20011203

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31U10/Signal Support Systems Specialist) medically separated for a back condition.  He started experiencing low back pain (LBP) in 2001 and was treated with physical therapy, but could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic LBP was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated chronic mechanical LBP as unfitting, rated 10%, with cited application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “Service connected condition has worsened and increasingly interfered with job limitations and basic home life with family making basic actions such as remaining sitting or standing either not possible or painful to the point proper concentration is not possible.  After realizing it was available, I have sought management of injuries to back and knee through VA health care over past 2 years with only minimal success (see 12) using prescription drugs to slightly mask severity.  After pursuing all options available to better understand and minimize my disability I have been told resolution is unknown and that issues are only likely to continue to worsen over time with age which is the opposite of what I was initially told when exiting military service (once exiting military environment improvement expected).  I imagine this false presumption also played a role in disability percentage awarded.  Although occurrences with my knee (rated 10%) have sustained (occasional pain, slowed mobility, restless) but not worsened in severity the trouble with my back (rated 10% also) has significantly impacted my basic function and posed a myriad of on the job restrictions (both mobile and stationary) and impacted home life with my young children.  The only comfortable position for me is leaning back while sitting (most things involve leaning forward).  When standing > 20 seconds (even to simply brush my teeth) I must pace around or seek support of counter/wall to reduce strain on back or be so consumed by the stress on my back that I am unable to focus on much else and eventually must exit the environment when I simply can't tolerate any further.  Are these significant limitations representative of the disability percentage awarded?  Thank you for your review.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting chronic mechanical LBP condition is addressed below.  The knee condition, as per the contention, was not identified by the MEB or PEB; and, thus is not within the DoDI 6040.44 defined purview of the Board.  This, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

RATING COMPARISON:

Service IPEB – Dated 20010913	VA - (~2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical LBP	5299-5295	10%	Lower Back Strain	5295	10%	20010928	
No Additional MEB/PEB Entries	Other x 2	20010928	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20011121 (most proximate to date of separation)

ANALYSIS SUMMARY:  The 2002 Veterans Affairs Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below.

	5295 Lumbosacral strain:
	Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
	marked limitation of forward bending in standing position, loss of lateral motion 
	with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
	of the above with abnormal mobility on forced motion ...................................................40
	With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
	in standing' position ......................................................................................................	20
	With characteristic pain on motion ...................................................................................	10

Chronic Mechanical Low Back Pain Unfitting Condition.  The CI initially presented with lower back pain in January 2001.  Despite conservative management, he continued to report worsening lower back pain without radiculopathy.  X-ray and magnetic resonance imaging (MRI) evaluations were normal.  An orthopedic consultation in April 2001 attributed the LBP to a ¼ inch right leg length discrepancy and a heel orthotic was prescribed.  At the MEB narrative summary (NARSUM) exam, approximately 4 months prior to separation, the CI reported an 8 month history of LBP with sleep disturbance.  The MEB examination was normal except for midline at the L1 area tenderness to palpation.

At the VA Compensation and Pension (C&P) examination 3 months prior to separation the CI reported 9 out of 10 waxing and waning pain daily with bending, lifting, and prolonged standing.  He reported that stretching intermittently helped with the pain.  The C&P examination was normal except for pain with back flexion and extension.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA rated the chronic LBP condition at 10% with similar coding, 5295 (lumbosacral strain).  Characteristic pain with motion, as evidenced within the service treatment records and VA examination, satisfied the 10% disability rating criteria.  There was no evidence of spasms or loss of lateral spine motion for a higher disability rating of 20%.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the chronic LBP condition was appropriately recommended in this case.  The Board concluded therefore that this condition could not be recommended for additional disability rating.
BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on DoDI 1332.39 and AR 635-40 for rating chronic LBP was operant in this case and the condition was adjudicated independently of this policy and regulation by the Board.  In the matter of the chronic mechanical LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Mechanical Low Back Pain	5299-5295	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120606, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130012156 (PD201200721)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA